Mediation: A Litigation Alternative

“Real peace is not the absence of conflict. Rather it is that state where conflict is managed effectively, efficiently and respectfully.” – Unknown

Conflict resolution can be viewed on a continuum, with negotiation on one end, and a decision(s) by a judge(s) on the other. In between lies mediation, which is facilitated negotiation and arbitration. The latter includes a third party’s binding decision. Other conflict resolution choices are avoidance (frowned on by psychologists) and self-help (frowned on by law enforcement).

Why mediation? Mediation occurs after negotiation has reached an impasse. Mediation can avoid the delays, high costs, uncertainty, the precedent setting effect and public spectacle of litigation. In mediation, the parties can select a mediator skilled in the area of the dispute (one doesn’t have that luxury regarding the judge). The parties control the result, as they must agree to the resolution. Mediation is normally confidential, so you aren’t reading about the case in the paper. Litigation and arbitration are lengthy, have formal set procedures and rules, with process costs (fees, expert reports, witness fees, transcripts, record production and the cost of waiting). When the parties cooperate in fashioning a resolution, maintaining the relationship is more likely. Do litigants break bread after the judge’s decision? Mediation is a shift from a looking-backwards, law-based positioning, to a forward-looking, business solutions analysis.

Mediation’s informality allows the parties to design the process to their needs. Generally, mediation falls into two formats. In facilitative mediation, the mediator guides the process and suggests options for settlement, but does not give an opinion on any of the legal or factual issues in dispute. In evaluative mediation the parties request an advisory opinion to break an impasse on any issue, and the mediator determines that issue.

After a mediator is selected, he or she will likely require the parties to execute an agreement to mediate. That agreement provides the ground rules for the process, confirms the mediator’s neutrality and the right to terminate the process at any time, and other guidelines determined relevant. A confidentiality agreement is likely included. The mediator may require pre-mediation submissions.

Mediation usually commences with the mediator’s opening statement confirming the agreement, the proceeding’s confidentiality, the parties’ authority to settle and the mediator’s neutrality.

The parties usually make opening statements, but this can be skipped if emotions are running high. Open discussion continues, or the parties break into separate caucus. Caucus involves one party and the mediator. This confidential setting allows the parties to be more open with the mediator. By receiving confidential information from both sides, the mediator is better prepared to propose constructive options for settlement. The caucus also allows the mediator to test a party’s facts and legal position. A “reality check” is when a party seriously considers the costs and circumstances of not reaching a voluntary agreement. The mediation concludes when there is an agreement to some or all of the issues, or a determination that continuing is fruitless.

I subscribe to “principled negotiation,” or negotiation on the merits. It is not “order taking” mediation. This theory is a product of the Harvard Negotiation Project. Because people come to the process with emotions and perceptions that may have created their failure to negotiate, mediation seeks to separate their common interests from superficial issues. For example, in a lease, the landlord wants a tenant, and the tenant wants a place to live. That common interest drives potential settlement. Having separated the superficial positions from common interests, the mediator seeks to generate options for mutual gain. The alternatives are scrutinized using mutually agreed to and objective criteria, employing fair procedures moving forward.

How do you get to mediation? The requirement to mediate may be in a contract. Courts generally require the parties to exhaust this procedure before pursuing litigation. If a lawsuit has been filed seeking $50,000 or less, it may qualify for the Court mandated mediation/arbitration program. Finally, the parties can simply agree to halt the conflict dance and try mediation. There are many resources identifying mediators and organization providing mediation services.

Since 90 percent of lawsuits filed settle before trial, and 90 percent of those going to trial settle before a verdict is rendered, it would seem that there is a tremendous opportunity for mediation to be successful.